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Thursday, July 26, 2018

In the case in hand, the accused have not offered any explanation to rebut the presumption under Section 20 of the Act. On the other hand, from the evidence of PW-1 that accused No.1 demanded the bribe appears to be natural. The application for approval of revised plan was earlier rejected. When the complainant and his advocate met TDO and on whose direction PW-1 has paid the requisite fine amount, the file has to necessarily move. It was at that point of time accused No.1 demanded bribe amount from PW-1. While appreciating the evidence, the High Court should have given proper weight to the views of the trial court as to the credibility of all evidence of PWs 1 and 3. When the findings recorded by the trial court is based upon appreciation of evidence, the High Court was not right in reversing the judgment of the trial court

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.895-896 OF 2018
(Arising out of SLP(Crl.) Nos.8259-60 of 2016)
THE STATE OF GUJARAT …Appellant
Versus
NAVINBHAI CHANDRAKANT JOSHI ETC. ...Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of the judgment dated 16.04.2015
passed by the High Court of Gujarat in Criminal Appeal Nos. 477-78 of
2000 in and by which the High Court reversed the verdict of conviction
passed by the trial court in Special (ACB) Case No.10 of 1992 and
thereby acquitting the respondents under Section 7 and Section 13(1)
(d) of the Prevention of Corruption Act, 1988 (‘the Act’).
3. Briefly stated case of the prosecution is that accused
No.1/respondent No.2 – J.D. Patel was working as a Junior Clerk in
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Non-Agriculture Department and accused No.2/respondent No.1 –
Navinbhai Chandrakant Joshi (Navinbhai) was also working in the
same department. The complainant-Bhagwandas (PW-1) is a
businessman dealing in the business of sugar as a wholesale retailer.
The complainant/PW-1 was desirous of starting a new firm by name
Purvi Monomal Pvt. Ltd. for manufacturing of acrylic monomal and for
this purpose, he has purchased a plot at Village Chhatral from one
Sandeep Agrawal and Manoj Agrawal. The agreement to sell was
executed in December, 1990 and the sale deed was executed in
March, 1991. Though the original owners of the plot had got the plot
converted into non-agricultural plot for different purpose, PW-1 had to
place the revised plan for necessary Non-Agricultural permission.
4. It is the case of PW-1 that accused No.1-J.D. Patel used to
time and again assure PW-1 that he would see to it that the necessary
permission is approved for the revised plan of PW-1. On 27.03.1991,
PW-1 learnt through accused No.1-J.D. Patel that the revised plan
of PW-1 was not accepted and his application was rejected. On the
direction of Taluka Development Officer (TDO), PW-1 paid a fine
of Rs.368.30 on 02.04.1991 in the office of Gram Panchayat, Chhatral
and the receipt was produced before the TDO. At that time, PW-1
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requested accused No.1-J.D. Patel with whom the file of PW-1 used
to remain to ensure that the matter is expedited at the earliest and
necessary permission is accorded. At that point of time, accused No.1-
J.D. Patel had demanded Rs.1,000/- for expediting the matter and
ultimately it was settled for Rs.500/-. Accused No.1-J.D. Patel told
PW-1 that he should pay him Rs.500/- on 03.04.1991 before recess
hours and after he receives the money, he would see to it that
necessary order of permission is passed in favour of PW-1. PW-1
approached the ACB Office and lodged the complaint against the
accused. After registration of the case and after following the
procedural formalities, a trap was arranged. On 03.04.1991, PW-1
went with PW-3-Devendra Kumar to accused No.1-J.D. Patel.
Accused No.1-J.D. Patel showed accused No.2-Navinbhai Joshi
to PW-1 and asked PW-1 to give the money to accused No.2-
Navinbhai Joshi in the gallery. PW-1 paid the money to accused No.2-
Navinbhai Joshi who kept it in his left side shirt pocket and went near
accused No.1-J.D. Patel and sat there. On showing the
pre-arranged signal, the police party came inside and the currency
notes were seized from accused No.2-Navinbhai. On throwing the
ultra violet light on the shirt of accused No.2-Navinbhai Joshi, white
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colour of light blue light of anthracene powder could be seen on the left
side pocket of the shirt worn by accused No.2-Navinbhai. Likewise,
upon throwing of ultra violet light on the hands of accused No.1-J.D.
Patel, white shining of light blue colour of anthracene powder could
be seen on the four fingers of right hand of accused No.1. After
completion of investigation, charge sheet was filed.
5. To prove the guilt of the accused, prosecution has examined six
witnesses and produced documentary evidence. Upon consideration
of oral and documentary evidence, the trial court held that the demand
and acceptance of the illegal gratification was proved by the
prosecution by the evidence of PWs 1 and 3 and also by the presence
of anthracene powder in the shirt pocket of accused No.2-Navinbhai
and the right hand of accused No.1-J.D. Patel. The trial court
convicted both accused Nos. 1 and 2 under Sections 7 and 13(1)(d) of
the Act and sentenced each of them to undergo rigorous imprisonment
for one year and two years respectively and also imposed fine with
default clause.
6. Being aggrieved, the accused preferred appeals before the High
Court. The High Court, by the impugned judgment, reversed the
judgment of the trial court by holding that there was no recovery from
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accused No.1-J.D. Patel and the demand and acceptance by the
accused persons has not been proved by the prosecution and
acquitted the accused. Being aggrieved, the State has preferred these
appeals, challenging the correctness of acquittal.
7. We have heard Ms. Hemantika Wahi, learned counsel appearing
on behalf of the State of Gujarat and Mr. Parthiv Goswami, learned
counsel appearing on behalf of the respondents. We have perused the
impugned judgment and also the judgment of the trial court and other
materials placed on record.
8. It is well-settled that to establish the offence under Sections 7
and 13(1)(d) of the Act, particularly those relating to the trap cases, the
prosecution has to establish the existence of demand as well as
acceptance by the public servant. In B. Jayaraj v. State of A.P.,
(2014) 13 SCC 55, it was held as under:-
“7. Insofar as the offence under Section 7 is concerned, it is a
settled position in law that demand of illegal gratification is sine qua
non to constitute the said offence and mere recovery of currency
notes cannot constitute the offence under Section 7 unless it is
proved beyond all reasonable doubt that the accused voluntarily
accepted the money knowing it to be a bribe. The above position
has been succinctly laid down in several judgments of this Court.
By way of illustration reference may be made to the decision in
C.M. Sharma v. State of A.P. (2010) 15 SCC 1 and C.M. Girish
Babu v. CBI (2009) 3 SCC 779.”
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9. In the present case, demand of the money by accused No.1-J.D.
Patel and acceptance of the bribe amount by accused No.2-Navinbhai
at the behest of accused No.1-J.D. Patel is proved by the evidence of
PWs 1 and 3. In his evidence, PW-1 had clearly stated about the
demand by accused No.1-J.D. Patel for expediting the matter
regarding the approval of revised plan for Non-Agricultural permission.
PW-1 further stated that when he met accused No.1-J.D. Patel on
03.04.1991, accused No.1-J.D. Patel told him that it would not
look proper if he takes the amount from PW-1 in office and showed
him accused No.2-Navinbhai and asked PW-1 to give the money to
him. PW-1 further stated that he went to the gallery and gave
muddamal currency notes to accused No.2-Navinbhai. Thereafter,
accused No.2-Navinbhai had gone near accused No.1-J.D. Patel and
sat down. On showing the pre-arranged signal, the police team
went inside and questioned accused Nos.1 and 2. On search of
accused No.2-Navinbhai, muddamal currencies were recovered from
the left side shirt pocket. Throwing light of ultra violet lamp had shown
presence of anthracene powder in the left side shirt pocket of accused
No.2-Navinbhai. Likewise, throwing light of ultra violet lamp on the
hands of accused No.1-J.D. Patel shown the presence of anthracene
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powder. From the evidence of PW-1, demand by accused No.1-J.D.
Patel and accused No.2-Navinbhai is proved by the prosecution.
The same is corroborated by the test of the ultra violet light showing
the presence of anthracene powder on the shirt worn by accused
No.2-Navinbhai and the right hand of accused No.1-J.D. Patel.
Evidence of PW-1 is corroborated by the evidence of PW3-Devendra
Kumar. The trial court recorded the findings that the
evidence of PWs 1 and 3 is consistent and they are reliable witnesses.
Upon appreciation of evidence, adduced by the prosecution, the trial
court convicted accused Nos. 1 and 2.
10. The High Court acquitted the accused on the ground that there
was no recovery from accused No.1-J.D. Patel and that the demand by
the accused persons has not been established by the prosecution.
The High Court took the view that accused No.2-Navinbhai had no idea
for what purpose the money was given to accused No.1-J.D. Patel by
PW-1 and therefore, it cannot be said that accused No.2-Navinbhai
had accepted the bribe amount upon demand to PW-1. The High
Court was not right in brushing aside the evidence of PW-1 who has
clearly stated that accused No.1-J.D. Patel demanded bribe of
Rs.1,000/- and the same was settled for Rs.500/- for expediting
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the matter for conversion of the plot for non-agricultural purpose.
Recovery of the tainted currency notes from accused No.2-Navinbhai
and the presence of anthracene powder in the right hand of accused
No.1-J.D. Patel and the pocket of the shirt of accused No.2-
Navinbhai clearly show that they acted in tandem in the demand
and acceptance of the bribe amount. When the demand and
acceptance of illegal gratification has been proved by the evidence of
PWs 1 and 3, the High Court was not right in holding that the demand
and acceptance was not proved. The findings of the trial court did not
suffer from any infirmity and the High Court was not justified in setting
aside the conviction of the accused.
11. So far as the presumption raised under Section 20 of the Act for
the offence under Section 7 of the Act is concerned, it is settled law
that the presumption raised under Section 20 of the Act is a rebuttable
presumption, and that the burden placed on the appellant for rebutting
the presumption is one of preponderance of probabilities. In C.M.
Girish Babu v. C.B.I. Cochin, High Court of Kerala (2009) 3 SCC
779, this Court held as under:-
“21. It is well settled that the presumption to be drawn under
Section 20 is not an inviolable one. The accuse charged with the
offence could rebut it either through the cross-examination of the
witnesses cited against him or by adducing reliable evidence…….
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22. It is equally well settled that the burden of proof placed upon
the accused person against whom the presumption is made under
Section 20 of the Act is not akin to that of burden placed on the
prosecution to prove the case beyond a reasonable doubt…”
Since it is established that the accused was possessing the bribe
money, it was for them to explain that how the bribe money has been
received by them and if he fails to offer any satisfactory explanation, it
will be presumed that he has accepted the bribe.
12. In the case in hand, the accused have not offered any
explanation to rebut the presumption under Section 20 of the Act. On
the other hand, from the evidence of PW-1 that accused No.1
demanded the bribe appears to be natural. The application for approval
of revised plan was earlier rejected. When the complainant and his
advocate met TDO and on whose direction PW-1 has paid the requisite
fine amount, the file has to necessarily move. It was at that point of
time accused No.1 demanded bribe amount from PW-1. While
appreciating the evidence, the High Court should have given proper
weight to the views of the trial court as to the credibility of all evidence
of PWs 1 and 3. When the findings recorded by the trial court is based
upon appreciation of evidence, the High Court was not right in
reversing the judgment of the trial court.
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13. In so far as the sentence of imprisonment is concerned for
conviction under Section 13(1)(d) of the Act, the trial court imposed
sentence of imprisonment of two years upon each of the accused. The
occurrence was of the year 1991 that is about 27 years ago.
Considering the passage of time, we deem it appropriate to reduce the
sentence of imprisonment of two years to the statutory minimum
imprisonment of one year.
14. In the result, the impugned judgment of the High Court dated
16.04.2015 in Criminal Appeal Nos.477-78 of 2000 is set aside and
these appeals are allowed affirming the conviction of the accused
Nos.1 and 2 under Section 7 and Section 13(1)(d) of the Act. The
sentence of imprisonment under Section 13(1)(d) of the Act imposed
upon each of the accused is reduced from two years to one year. The
respondents/accused Nos.1 and 2 shall surrender themselves to serve
the remaining sentence within two weeks from today, failing which,
they shall be taken into custody.
.…….…………...………J.
[RANJAN GOGOI]
…………….……………
J.
[R. BANUMATHI]
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New Delhi;
July 17, 2018
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